'Life and death' appeal of Sask. Catholic school ruling to be heard this week
A 2017 court ruling barred Sask. gov't from funding non-Catholic students in Catholic schools
The appeal of a landmark 2017 ruling that said the Saskatchewan government can't pay for non-Catholic kids to attend Catholic schools is coming before the province's highest court this week.
The catalyst for the case came more than a decade ago in Theodore — a rural village about 40 kilometres northwest of Yorkton.
In 2003, the public school division that served the area, Good Spirit, decided it was no longer feasible to keep the village school open. It closed the school and wanted to bus the 42 students about 17 kilometres to the town of Springside.
Parents in Theodore were not impressed. A group of Roman Catholics used provisions in the Education Act of 1995 and petitioned the Minister of Education to form Theodore Roman Catholic School Division — which is now part of Christ the Teacher Roman Catholic Separate School Division (CTT).
That school division bought the existing school in the village and renamed it St. Theodore Roman Catholic School.
Many students who weren't Catholic switched to the Catholic system. Theodore's K-8 school currently has 20 students.
The Good Spirit School Division sued CTT and the province in 2005, arguing that the school wasn't actually Catholic.
The ensuing court case forced the courts to consider Canada's Constitution Act (1867) and the Charter of Rights and Freedoms.
In 2017, Justice Donald Layh ruled that Saskatchewan's funding of "non-minority faith students" in Catholic schools violates both the Charter of Rights and "the state's duty of religious neutrality."
This meant either the province had to change its ways or thousands of students would need a baptismal certificate.
The province was given until June 2018 to abide by the ruling. Instead, the government appealed and continues to pay for non-Catholics to attend Catholic schools pending the result of that appeal.
Sask. pledges to override charter
The government has made it clear that, if unsuccessful on appeal, it plans to counteract the ruling using the notwithstanding clause, which allows provincial governments to override parts of the Charter for five-year periods.
The clause only been used a handful of times in Canada. In this case, it would allow the education funding model to continue as is.
"We will defend school choice for students and parents. By invoking the notwithstanding clause we are protecting the rights of parents and students to choose the schools that work best for their families, regardless of their religious faith," Brad Wall said in 2017.
Then-Minister of Education Don Morgan said the clause would give parents certainty of choice "without having to worry about the outcome of an appeal."
Saskatchewan passed the bill invoking the clause in the legislature, but it has yet to be proclaimed so the five-year period hasn't started.
"It's an interesting political phenomenon that a province like Saskatchewan is willing to override basically constitutionalized human rights," said John Whyte, a constitutional law expert.
He said the reliance on the notwithstanding clause endangers democracy.
"Other people are more comfortable with overriding Charter rights or human rights. I'm not. I think it's appalling," he said.
Whyte suggested this should be on the agenda of every provincial election henceforth.
"I would hope that that overriding the Charter of Rights would become a matter of political controversy every time it's done."
'Life and death'
The province and its Catholic schools will face the Good Spirit School Division in Saskatchewan's Court of Appeal starting Tuesday.
Whyte said the appeal hearing will be heated.
"Both the major parties see this as life and death," Whyte said. "They see it as a fairly momentous for the future of their education project in the province."
The ruling, if sustained, could affect the viability of separate schools.
The Saskatchewan government said in 2017 the ruling "would force about 10,000 non-Catholic students out of Catholic schools."
People should care because because the structure of funding education is under attack and may have to change.- John Whyte, constitutional law expert
Recent headcounts found that, as of September 30, 2018, there were 43,419 total students enrolled in Catholic Schools in Saskatchewan. They don't track data on who isn't Catholic.
Whyte said public funding for other religious schools — like Luther College, the Regina Christian School or the Huda School for Muslim students — is also at stake.
The case "raises both the meaning of historical commitments made to minority communities and raises the question of very foundational charter right freedom of religion," Whyte said.
"People should care because because the structure of funding education is under attack and may have to change."
Whyte said that rural schools are likely to be most affected by the decision.
He said these schools already face the most challenges providing quality education and that other rural public schools could face the same difficulties the one that closed in Theodore did.
"The public school system just isn't going to do one-room schools anymore," he said.
"It has a need to respond to the very many situations of children, including social situations of children."
He said public school divisions are facing low enrolment and expensive facility maintenance.
Theodore case has become a national test case
Jim Farney, who is department head of politics at the University of Regina and has also recently penned a book on religious schools in Canada, said a unique case like Theodore's is "not the type of thing you want to be thinking about if you want to set policy for the whole province."
Yet the Theodore case has become a "nationally important test case."
"It will have important repercussions for Alberta and Ontario, as well, which are the two other provinces that still have constitutionally protected separate schools."
The history of Catholic schools
Canada's Catholic school system emerged in the mid-19th century, when the church was institutionally powerful.
Francophone minority rights and Métis minority rights were attached to discussions of the Catholic church.
Farney said school systems were "the most explosive political issue of the day" as politicians worked toward Confederation in 1867.
He said the effort to appease both Protestants and Catholics was a hot button topic at the time.
Ontario could have its Protestant school system while the Roman Catholic minorities could have their own minority schools, and vice-versa in Quebec.
Farney said that when Manitoba joined Canada in 1870 its education system was disrupted by English protestants from Ontario moving to the province.
The province threw out publicly-funded Catholic schools in 1890. As Saskatchewan and Alberta prepared to join Canada in 1905, the federal government was trying to avoid controversy seen in Manitoba.
The 1905 Saskatchewan Act, which established the province, contained the same education rights established when Canada confederated.
That meant publicly funded separate schools — which at the time meant publicly funded Catholic schools — became constitutionally entrenched.
Farney said this can be changed. It has been done recently in two other provinces.
Quebec axed its separate system in 1997. Newfoundland and Labrador cut its in 1998 after a referendum.
"While it was super politically fraught in Newfoundland and it was contentious in Quebec, it's completely possible," he said.
The province and the federal government only need to agree to make the change. That means it can turn into "straight up electoral politics," Farney said.
He said there will likely be pressure for constitutional amendment should the Good Spirit School Division ruling be sustained.
This week's appeal hearing is scheduled for two days. Both experts believe the case will be brought before the Supreme Court should the appeal fail.